Wisconsin Lawyer
Vol. 80, No. 2, February 2007
New SCR Chapter 20 - Rules of Professional Conduct for Attorneys
In the matter of the Petition for Amendment to Supreme Court Chapter 20 - Rules of Professional Conduct for Attorneys: Notice of Rule Change
Order 04-07
IT IS ORDERED that effective July 1, 2007, Chapter 20 of the Supreme Court Rules is repealed and recreated to read as set forth in the order of this court dated Jan. 5, 2007;
IT IS FURTHER ORDERED that the full text of the order repealing and recreating SCR Chapter 20 shall be made available on the Web site of the Wisconsin Supreme Court, http://wicourts.gov, and the Web site of the State Bar of Wisconsin [www.wisbar.org/RulesOfConduct].
Dated at Madison, Wis., this 5th day of January, 2007.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
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Multi-jurisdictional Practice
In the matter of the Petition of the State Bar of Wisconsin to Amend Chapter 20 of the Supreme Court Rules
Order 06-06
On Nov. 20, 2006, the State Bar of Wisconsin filed a petition seeking to amend SCR 20:5.5, SCR 20:8.5, and SCR 10.03(4) of the Supreme Court Rules. More specifically, the petition proposes amending SCR 20:5.5 to allow for the temporary practice of law by lawyers not licensed to practice in the State of Wisconsin as exceptions to the prohibition against the unauthorized practice of law; amending SCR 20:8.5 to modify the Rules regarding the applicability of Rules of Professional Conduct to lawyers engaged in the temporary practice of law in the State of Wisconsin; and amending SCR 10.03(4) to modify the Rules on pro hac vice admission.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on April 12, 2007, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
IT IS FURTHER ORDERED that the appendices filed with the petition, namely Appendix 1 (proposed changes to SCR 20:5.5), Appendix 2 (proposed changes to SCR 20:8.5), and Appendix 3 (proposed changes to SCR 10.03 (4)) shall be made available on the Web site of the Wisconsin Supreme Court, http://wicourts.gov.
Dated at Madison, Wis., this 20th day of December, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
NOW COMES the State Bar of Wisconsin and hereby petitions the Supreme Court for an order amending SCR 20:5.5 and SCR 20:8.5 of the Rules of Professional Conduct for Attorneys, as follows:
- To amend SCR 20:5.5 to allow for the temporary practice of law by lawyers not licensed to practice in the State of Wisconsin as exceptions to the prohibition against the unauthorized practice of law; and
- To amend SCR 20:8.5 to modify the Rules regarding the applicability of Rules of Professional Conduct to lawyers engaged in the temporary practice of law in the State of Wisconsin.
- To amend SCR 10.03(4) to modify the Rules on pro hac vice admission.
Attached to this petition are the proposed amendments to SCR 20:5.5 and SCR 20:8.5 along with a Memorandum in Support of the Petition.
The changes presented in these proposed amendments coincide for the most part to the proposed changes to Model Rule 5.5 and Model Rule 8.5 in order to address the question of lawyers temporarily providing legal services on behalf of a client in a jurisdiction where the lawyer is not licensed, known as multi-jurisdictional practice. The proposed amendments are very similar to the amendments to the Model Rule 5.5 and 8.5 as recommended by the American Bar Association and its Study Committee on the topic of multi-jurisdictional practices. The proposed changes to the "pro hac vice" rule are designed to incorporate the Model Rule and procedures for pro hac vice admission that have been recommended by the American Bar Association to all states. The purpose of these proposed changes are to incorporate a model procedure for a lawyer to obtain pro hac vice status in the State of Wisconsin like in all other states.
The Board of Governors of the State Bar of Wisconsin recommends approval of these modifications to SCR 20:5.5 and SCR 20:8.5 as well as SCR 10.03(4). The Board of Governors of the State Bar believes it is important to address the issue of multi-jurisdictional practice within the context of ensuring protection to the public by allowing the Office of Lawyer Regulation to investigate and issue discipline for lawyers that decide to engage temporarily in the practice of law in Wisconsin on behalf of specific clients.
State Bar of Wisconsin
Thomas J. Basting Sr., Esq., President-elect
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Electronic Signatures
In the matter of the Creation of a Court Rule Authorizing Use of Electronic Signatures by Court Officials
Order 06-07
On Dec. 6, 2006, A. John Voelker, Director of State Courts, filed a petition seeking to create a supreme court rule authorizing the use of electronic signatures by court officials.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on March 21, 2007, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
Dated at Madison, Wis., this 20th day of December, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
The Director of State Courts petitions this court to create a supreme court rule authorizing the use of electronic signatures by court officials. This petition is brought pursuant to the court's rulemaking authority under Wis. Stats. s. 751.12 and its administrative authority over all courts conferred by Article VII, s. 3 of the Wisconsin Constitution. This request is supported by the CCAP Steering Committee and the Records Management Committee. It is consistent with the electronic filing petition but is intended to stand independently.
Electronic signature technology has been developed by the Consolidated Court Automation Program (CCAP) as part of the court electronic filing pilot project. To use the technology, a court official logs onto the case management system, using his or her regular user name and password, and brings up a form or order to be reviewed. When the document is ready to be signed, the court official indicates approval of the document, causing the official's name to appear on the signature line of the document. Court commissioners and clerks of circuit court have been applying electronic signatures to small claims judgments and orders as part of the electronic filing pilot project since April 2005, without any problem or objection.
Signing case-related documents. This petition requests that electronic signatures be approved for use by court officials outside the context of electronic filing. The technology can apply an electronic signature to any order or form generated by the CCAP case management system or the Supreme Court/Court of Appeals (SCCA) case management system. This petition requests that electronic signatures be made available to circuit court judges, clerks of circuit court, registers in probate, juvenile clerks, and court commissioners appointed under Wis. Stats. 757.68 and SCR 75.02(1), and to the Supreme Court, Court of Appeals, and the Clerk of the Supreme and Appellate Courts, to sign documents for case purposes. Electronic signatures will not necessarily be used for every electronic document, but they will be extremely useful for the common orders and forms that are generated many times a day.
Signing administrative documents. The same signature can also be used by CCAP users outside the CCAP and SCCA case management systems to sign electronic documents for administrative purposes. Documents such as certifications of pending cases, requests for judicial assignment, and interpreter reimbursements will no longer need to be faxed in order to preserve a signature, and their information may be stored electronically in lieu of paper copies. This petition requests electronic signatures for the court officials listed above, plus the Director of State Courts and his designees. Such signatures will be authorized for administrative documents to the extent that programming resources are available and the business need is shown.
Electronic signature statutes. In 2003 Wisconsin Act 294, the Wisconsin legislature approved the use of electronic signatures in government records and commercial transactions by adopting provisions of the Uniform Electronic Transactions Act (UETA). Wis. Stats. s. 990.01(38) defines a "signature" to include handwriting, the personal mark of one unable to write, and an electronic signature.1 The heart of UETA appears at s. 137.15:
Legal recognition of electronic records, electronic signatures, and electronic contracts.
(1) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
(2) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
(3) If a law requires a record to be in writing, an electronic record satisfies that requirement in that law.
(4) If a law requires a signature, an electronic signature satisfies that requirement in that law.
At the request of the Wisconsin Director of State Courts, the UETA legislation exempted court filings from coverage to let the court develop its own technical and legal standards for court documents.2 The proposed rule now authorizes court officials to use electronic signatures on those documents described in Wis. Stats. s. 137.12 (2m), as well as any other documents signed by the court.3
The electronic signature feature developed by CCAP meets the security and verifiability standards of UETA and meets national standards in commercial and government practice. CCAP has received many requests for a signature technology from judges and clerks of circuit court. Enabling this feature will expedite the work of the courts without detriment to the security of the signature or the integrity of court documents.
Signing by designees. Under the proposed rule, a court official's electronic signature is identified with the official personally and can only be applied through programs provided by CCAP. This rule also allows designees to apply an official's electronic signature when authorized to do so through the user security procedures of the case management system.4 In the clerk's office, a deputy clerk can be designated to sign those documents that are sent out many times a day, such as small claims summonses, notices of entry of judgment, and satisfactions. For judges, the technology represents a more secure and controllable version of a signature stamp. Since current practices vary widely with respect to signature stamps and delegated signing powers, this rule allows each court to develop a system that works most efficiently for it and encourages the use of electronic processes by judges.
Appellate decisions have reasoned that counsel's personal signature is necessary to confer jurisdiction on the court, to assure that the pleadings are well-grounded in law and fact, and to prevent the unauthorized practice of law. See Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 512-513; Novak v. Phillips, 2001 WI App. 156, 246 Wis. 2d 673, 680-681; Jadair, Inc. v. U.S. Fire Insurance Co., 209 Wis. 2d 187, 211-212 (1997). No case has examined the signature requirements for court officials, and the reasoning behind these cases seems inapplicable. Under this rule, the court official remains responsible for reviewing, revising and approving the document before his or her electronic signature is applied. The court official should be held accountable as if the document had been signed personally and should be expected to take corrective action for any misuse of the signature.
Accordingly, the Director requests that a new section of SCR 70 be created as follows:
SCR 70.__ Electronic Signatures.
(1) As used in this rule, "court official" means a circuit court judge, clerk of circuit court, register in probate, juvenile clerk, court commissioner appointed under s. 757.68 and SCR 75.02(1), justice of the Supreme Court, judge of the Court of Appeals, and the Clerk of the Supreme and Appellate Courts. "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.
(2) Secure electronic signatures may be provided by the Consolidated Court Automation Program (CCAP) for use by court officials who sign electronic documents. The electronic signature shall be treated as the court official's personal original signature for all purposes under Wisconsin statutes and court rules. An electronic signature may be used on all court documents, including those documents described in Wis. Stats. s. 137.12(2m). The official's printed name shall be inserted in place of a handwritten signature.
(3) A court official may delegate the use of his or her electronic signature to an authorized designee, using the security procedures of the CCAP case management system or the Supreme Court/Court of Appeals (SCCA) case management system. A court official is responsible for any use of his or her electronic signature by an authorized designee.
(4) An electronic signature shall be used only by the official to whom it is assigned and by such designees as the official may authorize. Upon learning that the confidentiality of the electronic signature has been compromised, the court official shall immediately report it to CCAP.
(5) Court officials may use their electronic signatures for administrative purposes. If the signature of a court official is required on a document, an electronic signature satisfies that requirement. Electronically signed documents may be stored electronically for the proper retention period.
(6) Electronic signatures may be provided to the Director of State Courts and such employees as the Director may designate for administrative purposes. At the discretion of the Director, an employee may be provided with his or her own electronic signature if appropriate for the conduct of official business. The electronic signature shall be treated as the person's original signature.
(7) The chief justice, chief judges and Director of State Courts may use their electronic signatures for the assignment of judges pursuant to SCR 70.23 and 70.24. A district court administrator may be the designee of the chief judges for purposes of judicial assignment.
1Wis. Stats. s. 990.01, construction of laws; words and phrases:
(38) Signature. If the signature of any person is required by law it shall always be the handwriting of such person or, if the person is unable to write, the person's mark or the person's name written by some other person at the person's request and in the person's presence, or, subject to any applicable requirements under subch. II of ch. 137, the electronic signature of the person.
Wis. Stats. 137.11(8) defines "electronic signature" as "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record."
2The uniform version of UETA does not have an exemption for court documents. To provide one, Senate Amendment 3 to 2003 AB 755 used language from an earlier uniform act, the Electronic Signatures in Global and National Commerce Act (E-Sign), 15 USC 7001. As a result, Wis. Stats. s. 137.12(2m) provides:
(2m) This subchapter does not apply to any of the following records or any transaction evidenced by any of the following records:
(a) Records governed by any law relating to adoption, divorce, or other matters of family law.
(b) Notices provided by a court.
(c) Court orders.
(d) Official court documents, including briefs, pleadings, and other writings, required to be executed in connection with court proceedings.
This language was intended to respect the separation of powers by having the court develop its own standards; it was not intended to preclude use of electronic signatures on court documents.
3This proposed rule does not authorize electronic signatures for attorneys or self-represented parties; that issue is addressed only in the proposed electronic filing rule.
4Within the existing user security system, court officials will identify each authorized designee, the effective date of authorization, and the expiration date if needed. Documents will be grouped into categories based on the type of document. The court official will identify which categories of documents each designee is authorized to sign, so that the system can block application of the official's signature outside the range of the designee's authority.
Submitted by:
A. John Voelker, Director of State Courts
Update: March 21 hearing postponed
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Electronic Filing in Circuit Courts
In the matter of the Creation of a Court Rule Governing Electronic Filing in the Circuit Courts
Order 06-08
On Dec. 6, 2006, A. John Voelker, Director of State Courts, filed a petition asking this court to create a new rule implementing electronic filing in the Wisconsin circuit courts.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on March 21, 2007, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
Dated at Madison, Wis., this 20th day of December, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
The Director of State Courts hereby petitions this court to create a new rule implementing electronic filing in the Wisconsin circuit courts. This petition is brought at the request of the Consolidated Court Automation Program (CCAP) Steering Committee.
This rule is proposed as part of Wisconsin Statutes Chapter 801, the general rules of procedure and practice that govern commencement of action, service and filing, form of papers, time for filing, filing by facsimile, and similar matters. The provisions of Chapter 801 were adopted by the Supreme Court pursuant to its rulemaking authority under Wis. Stats. s. 751.12 and its administrative authority over all courts conferred by Article VII, s. 3 of the Wisconsin Constitution. An electronic filing rule can be created by the court under that same authority.
This petition is supported by the report of a special committee of the Director of State Courts, attached as Exhibit A, describing the genesis of the rule and the technology to be used. The language of the proposed rule is attached to this petition as Exhibit B. The notes accompanying the rule are intended to be published for guidance. Additional comments not intended for publication, addressing notarization and court official signatures, are found in italics.
Submitted by:
A. John Voelker, Director of State Courts
Update: March 21 hearing postponed
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